In September 2014, new legislation – The “Certainty in Enforcement Act of 2014” (H.R. 5423) – sought to limit the current EEOC Guidance and “amend Title VII of the Civil Rights Act of 1964 to exclude the application of such title to employment practices that are in compliance with Federal regulations, and State laws, in certain areas.” If passed, the Act would amend Section 703 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–2) which could affect the EEOC Guidance. The current status of the H.R. 5423 is “Referred to the Subcommittee on Workforce Protections.” More information about H.R. 5423 is available at https://www.congress.gov/bill/113th-congress/house-bill/5423.

In November 2014, the Federal Trade Commission (FTC) issued a follow-up guide – Background Checks – Tips For Job Applicants and Employees – that expanded on a March 2014 joint publication of EEOC and the FTC. The new guide further specifies the rights of applicants and employees under the federal Fair Credit Reporting Act (FCRA) and anti-discrimination laws when employers run background checks. The new guide explains that when employers run background checks, the subjects of background checks have legal rights under federal law and possibly city or state protections. The new FTC guide is available at http://www.consumer.ftc.gov/articles/pdf-0044-background-checks.pdf.

Regardless of any pushback, it is clear that the concerns raised by the EEOC Guidance are presently part of the conversation about the use of criminal records. Certainly, it can be expected that the process will undergo challenge, examination and some changes, but at the end of day, the core principal that a criminal record cannot be used to automatically deny employment is here to stay. The FTC enforces the FCRA, a federal law that regulates background checks for employment while the EEOC enforces federal laws against employment discrimination. The complete text of the EEOC Guidance is available at http://www.eeoc.gov/laws/guidance/arrest_conviction.cfm.